On
February 9, 2016, Mr. Daleiden sent a written request to
Defendant University of Washington (“UW”) under
Washington State's Public Records Act
(“PRA”), RCW ch. 42.56, to “inspect or
obtain copies of all documents that relate to the
purchase, transfer, or procurement of human fetal
tissues, human fetal organs, and/or human fetal cell
products at the [UW] Birth Defects Research Laboratory from
2010 to present.” (Power Decl. (Dkt. #
5) ¶ 4, Ex. C (bolding in original).) On February 10,
2016, Defendant Zachary Freeman issued a similar PRA request
to UW.[2] (Id. ¶ 6, Ex. E.) Among
other documents, these PRA requests sought communications
between UW or its Birth Defects Research Laboratory
(“the Lab”), on the one hand, and Cedar River
Clinics (“Cedar River”), Planned Parenthood of
Greater Washington and North Idaho, or certain individuals or
employees of Cedar River and Planned Parenthood of Greater
Washington and North Idaho, on the other hand. (Id.
¶ 6, Ex. E at 1; see also id. ¶ 4, Ex. C
at 1-2.) Mr. Daleiden's PRA request specifically lists
the names of eight such individuals. (Id. ¶ 4,
Ex. C at 1-2.)

On
August 3, 2016, Doe Plaintiffs filed a complaint on behalf of
a putative class seeking to enjoin UW from issuing unredacted
documents in response to the PRA requests. (Compl. (Dkt. #
1).)[5]
Doe Plaintiffs object to disclosure of the requested
documents in unredacted form because the documents include
personally identifying information such as direct work phone
numbers, work emails, personal cell phone numbers, and other
information. (See TAC (Dkt. # 77) at 2 (“Doe
Plaintiffs . . . seek to have their personal identifying
information withheld to protect their safety and
privacy.”); see also, e.g., Doe 5 Decl.
¶¶ 4-5 (“Any email contacts I had with [the
Lab] would have highly personal information such as my name,
email address, and phone number. . . . My name, email
address, and phone number are information that I try to keep
private when related to where I work.”).) On the same
day that they filed suit, Doe Plaintiffs filed a motion
seeking both a temporary restraining order
(“TRO”) and a preliminary injunction against
disclosure of the requested documents.[6] (See
TRO/PI Mot. (Dkt. # 2).)

In
addition, Doe Plaintiffs filed the present motion for class
certification. (See MCC (Dkt. # 16).) In their
original motion, Doe Plaintiffs ask the court to certify a
class consisting of “[a]ll individuals whose names
and/or personal identifying information (work addresses, work
or cell phone numbers, email addresses) are contained in
documents prepared, owned, used, or retained by UW that are
related to fetal tissue research or donations.”
(Id. at 2.)

C.
Initial TRO and Preliminary Injunction

On
August 3, 2016, the court granted Doe Plaintiffs' motion
for a TRO but set the TRO to expire on August 17, 2016, at
11:59 p.m. (TRO (Dkt. # 27) at 7.) The court // restrained UW
“from releasing, altering, or disposing of the
requested documents or disclosing the personal identifying
information of Plaintiffs pending further order from this
court.” (Id. at 7.) On August 17, 2016, the
court extended the TRO “until such time as the court
resolves [Doe] Plaintiffs' pending motion for a
preliminary injunction.” (8/17/16 Order (Dkt. # 54) at
2.)

On
November 11, 2016, the court granted Doe Plaintiffs'
motion for a preliminary injunction.[7] (PI (Dkt. # 88).) The court
concluded that Doe Plaintiffs were likely to succeed on the
merits of their claim that disclosure of their personally
identifying information would render them and those similarly
situated uniquely vulnerable to harassment, shaming,
stalking, or worse, and in this context, would violate their
First Amendment rights to freedom of expression and
association. (Id. at 18-19.) Thus, the court also
concluded that Doe Plaintiffs were “likely to succeed
on the merits of their claim that their personally
identifying information is exempt from disclosure under the
PRA.” (Id. at 19.) After finding that the
remaining factors-irreparable injury, the public interest,
and the balance of equities-also favored preliminary
injunctive relief, the court granted Doe Plaintiffs'
motion but narrowed the scope of the preliminary injunctive
relief as compared to the relief granted in the TRO. (See
Id. at 19-22, 25.)

In the
preliminary injunction, the court did not prohibit the
release of the documents at issue but rather enjoined UW from
releasing the requested documents without first redacting all
personally identifying information or information for Doe
Plaintiffs from which a person's identity could be
derived with reasonable certainty. (Id. at 19-21,
25.) Specifically, the court held that UW must redact all
personally identifying information, including but not limited
to (a) information that identifies or provides the location
of an individual, (b) information that would allow an
individual to be identified or located, (c) information that
would allow an individual to be contacted, (d) names of
individuals, (e) phone numbers, (f) facsimile numbers, (g)
email and mailing addresses, (h) social security or tax
identification numbers, and (i) job titles. (Id. at
25-26.)

D.
Mr. Daleiden's First Appeal

On
December 15, 2016, Mr. Daleiden appealed the district
court's grant of a preliminary injunction. (See
Not. of App. (Dkt. # 98).) On January 4, 2017, this court
stayed proceedings at the district court level, including Doe
Plaintiffs' motion for class certification, pending the
resolution of Mr. Daleiden's appeal.[8] (1/4/17 Min.
Entry.) On August 14, 2017, the Ninth Circuit reversed and
remanded the court's preliminary injunction order but
nevertheless left the preliminary injunction in place for 120
days “to // allow the district court to enter the
necessary findings of fact and conclusions of law supporting
injunctive relief.” (USCA Order at 4.)

In its
August 14, 2017, order, the Ninth Circuit stated that
“[t]o prevail on the First Amendment claim, . . . Doe
Plaintiffs must show that particular individuals or groups of
individuals were engaged in activity protected by the First
Amendment and ‘show “a reasonable probability
that the compelled disclosure of personal information will
subject”' those individuals or groups of
individuals ‘to threats, harassment, or reprisals'
that would have a chilling effect on that activity.”
(USCA Order at 3 (citing John Doe No. 1 v. Reed,
U.S. 186, 200 (2010) and quoting Buckley v. Valeo,
424 U.S. 1, 74 (1976) (brackets omitted) (footnote omitted).)
The Ninth Circuit agreed “that there may be a basis for
redaction where disclosure would likely result in threats,
harassment, and violence, ” but determined that
“the [district] court's order did not address how
the Doe Plaintiffs have made the necessary clear showing with
specificity as to the different individuals or groups of
individuals who could be identified in the public
records.” (Id.) The Ninth Circuit also
determined that this court “made no finding that
specific individuals or groups of individuals were engaged in
activity protected by the First Amendment and what that
activity was.” (Id. at 3-4.) Accordingly, the
court remanded the proceeding “to address how
disclosure of specific information would violate the
constitutional or statutory rights of particular individuals
or groups.” (Id. at 4.)

The
Ninth Circuit also referenced the pending motion for class
certification and noted that this court “may choose to
rule on that motion before revisiting the preliminary
injunction if creating sub-classes would be useful and
appropriate.” (Id. at 3, n.1.) The Ninth
Circuit stated that “[c]onsiderations of commonality
under Federal Rule of Civil Procedure 23 may bear some
similarity to those related to particular individuals'
entitlement to a preliminary injunction.”
(Id.) The Ninth Circuit counseled, however, that
“the timing of these decisions” was within the
district court's discretion and “that a
class-certification ruling [wa]s not a predicate to reissuing
the preliminary injunction.” (Id.)

E.
Reissuing the Preliminary Injunction

Following
the Ninth Circuit's remand, the court issued an order
directing the parties to submit supplemental briefing and
other materials responding to the Ninth Circuit's
guidance on Doe Plaintiffs' motion for a preliminary
injunction. (See generally 8/22/17 Order (Dkt. #
114).) In addition, the court noted the Ninth Circuit's
guidance concerning Doe Plaintiffs' motion for class
certification, but left to Doe Plaintiffs “decisions
concerning the re-noting, timing, and substance of their
motion for class certification.” (Id. at 4,
n.3.)

After
receiving the parties' supplemental materials on Doe
Plaintiffs' motion for a preliminary injunction,
[9] and
hearing the argument of counsel, [10] the court reissued the
preliminary injunction on November 30, 2017.[11] (2d PI (Dkt.
# 130).) In their opening supplemental preliminary injunction
brief, Doe Plaintiffs identified three groups for purposes of
analyzing their engagement in First Amendment protected
activity: (1) “[a]dvocates, [p]ractitioners, and
[s]taff . . . who advocate through speech or conduct, for
organizations and/or entities that provide abortions and/or
make available fetal tissue for medical research, including
individuals who in fact participate in the procurement of
fetal tissue for medical research purposes and/or arrange for
the delivery of fetal tissue to the Lab, and staff associated
with the same”; (2) “[l]ab staff, ” which
includes both current and former employees of the Lab,
“who facilitate[] the collection and/or dissemination
of fetal tissue for medical research purposes, and staff
associated with the same”; and (3) “[r]esearchers
and [s]taff . . . whose efforts contribute to medical
research that uses fetal tissue obtained from the Lab, and
staff associated with the same.” (Doe Supp. PI Br. at
3.) In addition, Doe Plaintiffs also implicitly identified
another subgroup within each of the foregoing groups,
consisting of the administrative or other staff members of
each of the organizations engaged in advocacy or scientific
research at issue here. (See Id. at 8.) Doe
Plaintiffs also stated that they “anticipate[d]
renewing their motion for class certification after the
[c]ourt rules on the validity of the preliminary injunction,
” and they “intend[ed] to update their
delineation of the class in line with the [sub]groups”
they had now identified. (Id. at 3, n.2.)

In its
November 30, 2017, order reissuing the preliminary
injunction, the court largely adopted Doe Plaintiffs'
proposed three sub-groups for purposes of analyzing the First
Amendment issues. (See 2d PI at 12-24.) The court
agreed that those individuals in group one-employees of
organizations that advocate for continued access to abortion
and women's reproductive rights and/or the continued
ability to conduct fetal tissue research-were likely to
succeed on their claim that they engaged in First
Amendment-protected activity. (See id. at 15-17.)
The court also agreed that plaintiffs in groups one, two, and
three were likely to succeed on their claim that they engaged
in lawful activities critical to the conduct of fetal tissue
research, and that the First Amendment also protects such
research activity. (See id. at 17-20.) Finally, the
court agreed that staff members in the three groups who
worked for organizations engaged in either fetal tissue
research and/or advocacy for women's reproductive health
services were likely to succeed on their claim that they are
entitled to the same First Amendment protections as the
organizations that employ them because staff members are
inevitably associated with the work of those organizations.
(See Id. at 20-24.)

In
addition to concluding that Doe Plaintiffs in all of the
identified subcategories were likely to succeed on their
claim that they were entitled to First Amendment protection
of their personally identifying information, the court also
concluded that Doe Plaintiffs were likely to succeed on their
claim that they have a constitutionally protected expectation
of privacy in their personally identifying information based
on article 1, section 7 of the Washington State Constitution.
(Id. at 35-41.) Specifically, the court concluded
that Doe Plaintiffs were likely to succeed on the merits of
their claim that this right to privacy requires UW to redact
their personally identifying information from the documents
Mr. Daleiden requested under the PRA. (Id. at
40-41.) After concluding that Doe Plaintiffs were likely to
succeed on the merits of both their First Amendment and
privacy claims, the court also found that Doe Plaintiffs had
met their burden with respect to the other preliminary
injunction factors and reissued the same preliminary
injunction consistent with scope of its prior order.
(Id. at 41-44.)

F.
Motion for Class Certification

On
December 14, 2017, Doe Plaintiffs filed (1) a notice renoting
their motion for class certification, and (2) a motion
seeking leave to file a supplemental reply memorandum in
support thereof. (Not. (Dkt. # 133); MFL (Dkt. # 134).)
Defendants did not file a response to Doe Plaintiffs'
motion (see Dkt.), and on December 27, 2017, the
court granted the motion (12/27/17 Order (Dkt. #
143)).[12] On December 28, 2017, Doe Plaintiffs
filed their supplemental reply memorandum in support of their
motion for class certification. (See Supp. Reply.)
In their supplemental reply, Doe Plaintiffs narrowed their
class definition to include “all individuals whose
names and/or personal identifying information (e.g., work
addresses, work or cell phone numbers, email addresses) are
contained in documents prepared, owned, used, or retained by
[UW] that relate to the purchase, transfer, or procurement of
human fetal tissues, human fetal organs, and/or human fetal
cell products at [the Lab] from 2010 to present.”
(Id. at 1-2.)

Doe
Plaintiffs, however, did not modify their motion to include
any subclasses. (See generally id.) Mr. Daleiden
filed a response noting in particular that, although Doe
Plaintiffs had identified three subgroups in their briefing
in support of the reissuance of the preliminary injunction,
Doe Plaintiffs did not address these subgroups in their
supplemental class certification briefing. (See
Supp. Resp. at 1-2.) On March 14, 2018, the court ordered Doe
Plaintiffs and Mr. Daleiden to provide supplemental briefing
on the issue of subclasses. (3/14/18 Order (Dkt. # 160).) The
parties filed their responses on March 26, 2018.
(See Doe Supp. Br.; Def. Supp. Br.)

In
their response, Doe Plaintiffs argue that, despite their
earlier representation that they would identify subclasses to
the district court following remand, they now believe that
“there is no inherent or realistic danger of conflict,
confusion, or tension between the putative class members,
” and so “a single class may be certified.”
(Doe Supp. Br. At 4.) Nevertheless, they also alternatively
propose modifying their previous overarching class definition
by including subclasses for each group identified in their
earlier preliminary injunction briefing and the court's
November 30, 2017, order reissuing the preliminary
injunction. (See Id. at 4-9.) Doe Plaintiffs'
alternate proposal delineating subclasses is as follows:

All individuals whose names and/or personal identifying
information (e.g., work addresses, work or cell phone
numbers, email addresses) are contained in documents
prepared, owned, used, or retained by the University of
Washington that relate to the purchase, transfer, or
procurement of human fetal tissues, human fetal organs,
and/or human fetal cell products at the University of
Washington Birth Defects Research Laboratory from 2010 to
present, and who:

1) are associated with entities that provide abortions and/or
make available fetal tissue to the Birth Defects Research
Laboratory;

2) are associated with the Birth Defects Research Laboratory;
or

3) are associated with medical researchers who use fetal
tissue obtained from the Birth ...

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